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What To Do If Police Try To Search Your Phone Without a Warrant
blottsie writes: The Supreme Court ruled this week that it is illegal for police to search your phone without a warrant. But just because that's the new rule doesn't mean all 7.5 million law enforcement officers in the U.S. will abide by it. This guide, put together with the help of the EFF and ACLU, explains what to do if a police officer tries to search your phone without a warrant. Of course, that doesn't mean they don't have other ways of getting your data.
If they feel you may be about to wipe your phone for some reason the police an search it under exigent circumstances.
When you cant win, ad hominem.
Don't piss them off. Just say "I do not consent to this search. Repeatedly.
excitingthingstodo.blogspot.com
Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide and EFF Guides here.
Have phone encrypted, and wipe phone from the bootloader?
What if they search your phone, find what they are looking for, then pretend they didn't search your phone?
10: PRINT "Everything old is new again."
20: GOTO 10
Treat it as any other home invasion.
--- and be carried out in a body bag.
If you are already under arrest or otherwise detained when they decide to illegally search your phone... I don't think the castle doctrine or even very wide interpretation of stand your ground will help you... doubly so as they would have already checked you for dangerous objects on your person.
Help Brendan pay off his student loans
How about, "don't have evidence of crimes on your phone," because "you aren't a criminal." /. groupthink is, as usual, that all cops are dishonest and looking to railroad everyone, because there was a bad cop once, and since he wasn't instantly outed by co-workers, that all cops are part of his nefarious plan to subvert your rights at all junctions.
Want to have a bad time at a traffic stop? Start your traffic stop by doing the crack-the-window and repeating the "am I free to go" mantra. I don't like driving to San Diego from Phoenix and having to get inspected along I-8. It angers me. ...but the solution isn't to be a dick to the guy out there in the papers-please guard hut. Keep voting against the idiots who make these things possible.
In the meantime, just keep your phone locked.
The US police are infamously variable. In some towns they are a model of how the police should be, respectful of the law and all citizens until proven guilty. The next town over they are little more than a legal mafia, happily resorting to intimidation and extortion to extract fines and reacting to any challenge to their authority with a campaign of persecution.
If you're in the latter, you're basically screwed. If you don't hand over the password, the officer will decide he smells a hint of pot in your car and tear the interior apart in a search in an effort to provoke you into touching him - and then it's one charge of 'resisting arrest' and a face full of pepper spray. You can fight in court, but they'll layer the charges on so thick and delay so long you'd exaust your life savings trying to secure any form of victory.
Wouldn't matter. The police search to produce evidence that is admissible in court. If they were to search a cell phone illegally, they could not use any of the evidence obtained from it in court, thus making the search useless in the first place.
I think we all understand the fruit of the poison tree. There's hundreds of Law and Order episodes :)
Police find some poison fruit, and then manage to come at it - by sheer luck and coincidence - from another route. At least that's the argument being made.
That's what the saying "freedom isn't free" really means, you know.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
Sad but true, if police want to do something illegal, and you argue with them, they *will* do it anyway, and you *will* be in further trouble for attempting to resist.
On the plus side, it seems like that could actually *help* you, seeing as how it would be inadmissible in court, so if you were on trial and their evidence was found that way, great for you! (I am not a lawyer. All my knowledge of law comes from watching fictional tv and reading fictional books. Ask a real lawyer if what I said is actually true. But it certainly definitely seems like it should be? But the "don't resist arrest" part definitely, that comes from the news.)
Parallel Construction.
http://en.wikipedia.org/wiki/Parallel_construction
The poison fruit of the poison tree. Inadmissible evidence.
Google: police cell phone extraction device
There were a bunch of stories about gadgets that could scoop up everything from your cell in about 2 seconds.
So I wonder if those devices will still be used - at the side of the road.
Because I'm an enthusiast when it comes to motorcycles and cars, I tend to keep a lot of action cameras hooked up when out at meets or when going to the track. I've been pulled over before and the police officer took the camera from my helmet and started flipping through the log. Knowing he wouldn't find anything incriminating because I had not been recording, I consented to the search...
Is this scenario protected under the precedent set by the Riley v. United States ruling?
Don't resist arrest? Don't plan on it, but that won't stop the cop from "narrating" what he wants others to believe what is happening. Case in point, cop pulls over a guy and walks up to the car knowing he's being recorded by his dashcam and has on a wireless mic. You hear the cop say "stop reaching for my gun" and see him lean in the car window. It looks like the guy has tried to take the cop's gun. The truth is that there is a 2nd cop car with a dash cam recording from an angle that allows you to see the driver's hands clearly on the steering wheel, even as the cop leans in his car to unbuckle his seat belt. The cop drags him out the car and throws him on the ground. The guy tries to break his fall and the cop starts shouting "stop resisting". This really happened... google Marcus Jeter New Jersey. The cops and the DA conspired to conceal the 2nd dashcam that showed the driver's hands /not/ reaching for the cops gun.
The article has some good advice, and what I would consider some bad advice:
"Lock your phone"
- GOOD ADVICE! A simple passcode is your first line of defense against any physical intrusion, just like the lock on your front door.
"Repeat 'I do not consent to this search'"
- GOOD ADVICE! Not only does it establish that you deny consent, it shows the cop that you know (at least some of) your rights, which will get most of them to think twice before doing anything that might violate your rights (especially if you're taping the encounter).
Don't get physical/let them do as they please, then lawyer up."
I consider that bad advice, because it discourages people from exercising their right to defend themselves against unlawful arrest, a right that has been repeatedly verified and upheld in court.
Of course, as with any exercising any right, you do so at your own peril.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
Most people involved in a pre-textual motor vehicle stop and issued a warning for a trivial non-offense won't know to say the magic words that begin their legal defense: "Am I free to go? Why am I being detained?" and when the polite officer says, "Well, I'm sure you've got nothing to hide, let me search your vehicle, and no matter what I'll make sure you're on your way quickly," many quickly hope compliance is their best option in the short-term.
So they say, "Yeah, go ahead," instead of the alternative, "I do not consent to search and invoke all protections afforded me by the Constitution; while I am cooperating within those constraints, please advise me promptly when I am free to go."
You'll get searched anyway, whether it's your phone or your car. You might get arrested anyway. But having invoked your rights instead of freely waiving your rights gives the defendant ample opportunity to assert their innocence in court without having already accidentally proven their guilt without the benefit of counsel.
I expect most people, despite the Supreme Court ruling, will find their phones searched anyway; consider stop-and-frisk in New York City. Please set a passcode on your device, preferably alphanumeric instead of a simple PIN, and avoid interacting with law enforcement, they have better things to do than read a neckbeard hacker's text messages to his mom about picking up more Mountain Dew at the store.
(Nevermind Border Patrol checkpoints in the US or Customs/Immigration interviews...)
(IANAL.)
Openly film the cops with one camera. Have the other one set up in an inconspicuous location, where it can see them them beating the crap out of you and smashing the first camera. Do not inform anyone about the second camera until its footage is safely on YouTube.
This has worked very well for me in the past:
"My lawyer has advised me that rights are like muscles. If they are not exercised, they become weak. Therefor I do not and cannot consent to this search."
It conveys, very directly:
your refusal of the search request
you are a constitution, and rights advocate... meaning you will a big headache for the cop if he continues
you have a lawyer that's also into that sort of thing and would love to sue the department
You should refuse EVERY search. EVERY time. With absolutely no exceptions.
The majority of arrests start with a consensual search by police of someone that legitimately thought they had nothing to hide. Everything is illegal. If a cop searches your home and he wants you to go to jail, you're going to jail. It's as simple as that.
People get into these situations where someone backs into their car in a parking lot and the cop that arrives casually asks "Mind if I check your car for open alcohol?" and they think "LOL that's funny! Of course I don't have that." But the cop isn't just looking for alcohol is he? He starts lifting your floor mats... does he think there's a beer bottle under there? In once instance a man bought a car from the local police impound. A few days later he got pulled over, consented to a search and low and behold the car had a secret compartment for smuggling drugs. They arrested him and he spent a month in jail before they finally realized it had the drugs when it went into impound. ALWAYS refuse search requests. ALWAYS.
Parallel construction trumps fruit of the poison tree. Second semester, basic criminal law course.
You do understand that parallel construction is basically perjury, right? And that police have outright lied about the circumstances of arrest on many occasions?
So if they illegally look, and then radio to one of their buddies to call in an 'anonymous' tip, you're pretty much screwed.
Or like when the police officer tries to delete pictures off your phone, and you tell him no, and he arrests you for resisting arrest ... which is absurd since you weren't in the process of being arrested in the first place.
If you're going to purely rely on the fruit of the poison tree or the integrity of a specific police officer you've just met ... you're doing it wrong.
Not all cops are dishonest. But enough of them are that you should more or less not trust that any given one is.
Lost at C:>. Found at C.
No they don't.
They don't have to be correct in their assertion that you are violating the law, or even have a law in mind to claim that your are violating to arrest you (the trial s there to sort out the truth), they juts need to say: "you are under arrest". However that does start a ticking clock where they have to file charges for a specific crime or let you go.
Wouldn't matter. The police search to produce evidence that is admissible in court. If they were to search a cell phone illegally, they could not use any of the evidence obtained from it in court, thus making the search useless in the first place.
Yes, it's not as if there's any recent evidence that US governmental entities sometimes obtain information by one method! then pretend they got it a different way.
#DeleteChrome
Except that parallel construction to circumvent the 4th would likely result in dismissal with prejudice, and possibly prosecution of the offending party, were it discovered. Ethics portion of basic criminal law course.
The first thing you should do is avoid eye contact, slowly back away, making calm reassuring noises. You should also keep your arms wide; it makes you look bigger and less like prey. Finally, you should lie on the ground, and play dead. They will quickly lose interest and move on. Do not run, as it will trigger their hunter/prey instincts.
If however they start to eat you, you should start to fight back vigorously.
Or if you are really worried about it, encrypt your phone and lock it...
The way this was phrased might make one disinclined to follow it, but the basic point is fairly sound. The important part is to clearly state that you do not consent to the search before they take it. It'll be up to your lawyer then, but if you say nothing then the prosecution might try to argue that you consented through your silence instead of raising an objection. If the officers choose to search despite your objection then what they find on the phone and everything found as a result of that initial finding could be thrown-out, and if an entire case is built on that initial phone evidence then the case could be dismissed entirely.
At least, that is how I understand it. I am not a lawyer though.
In all honesty, based on what lawyers have published on the Internet, many of the defendants that could have benefited by not consenting to a search in the various ways police do search have done themselves in through their own words. The best advice is to not speak to the police beyond the incidentals necessary by law (ie, states with ID laws, minimal discussion at traffic stops, etc).
Do not look into laser with remaining eye.
If you're really worried about storing incriminating evidence on a device, stenography might be a good way to hide it. It's been around a long, long time and exists in many forms. Information encrypted through a key looks like random data. Information existing in the low bits of color values in a video looks like a video (with a little noise). I'd be surprised if there weren't stenographic apps already out there for smart phones (I'll let y'all look). Policeman are graduates of the police academy: very few of them have a software engineering degree!
I prefer to let some other guy die for our freedom, and then celebrate his memory.
SJW's don't eliminate discrimination. They just expropriate it for themselves.
I didn't RTFA, but wouldn't the tricky/slimy answer be "let them search it, so then all of the evidence gets thrown out"?
That should have been "steganography". Sorry about that...
from the article:
These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.
mfwright@batnet.com
My phone is always listening for voice commands, which is great for things like making calls, sending messages, starting navigation etc., but I want a new command specifically for situations like this: "OK Google Now: Lock and Record". It should lock my phone and start a continuous video and audio recording which is streamed to a server somewhere. Even better if it's a separate hotword so I don't have to say "OK Google Now" first to warn the officer I'm about to screw with his plans to screw with me.
If I can activate it by voice, it won't matter whether the phone is locked when it's taken from my pocket. And with the recording, I'll have proof that I did not consent to the search. Streaming will ensure that proof can't be accidentally destroyed by, say, dropping my phone just before a cruiser happens to roll past.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
nothing stops regime security forces to search for anything they want.
Let's not forget this country has largest part of its population in jails and the rest are being enslaved by mortgages or student loans.
This is "American Nightmare" we all hear about.
Your Honor, I knew that the defendant could, with as few as six taps on his phone, completely and irrevocably erase all evidence contained. Therefore, due to exigent circumstances, I felt justified in searching the phone without a warrant.
Vintage computer games and RPG books available. Email me if you're interested.
Sad but true, if police want to do something illegal, and you argue with them, they *will* do it anyway, and you *will* be in further trouble for attempting to resist.
That's why you DON'T resist. You respectfully make it clear that you did not consent to a search of your phone. If they ask "May I look at your phone?" you say "No, not without a warrant", if they do it anyway, you might want to say "I didn't give you permission to look at my phone, please put it down" Keep trying until they tell you to shut up.
If the police insist on doing something illegal, like searching your phone without a warrant or permission, it's going to be a matter for the courts to figure out.... Just make sure you make enough of a fuss so people around will remember that you obviously objected so you will have witnesses Nobody else there? Sorry dude, they are going to do what they want and that includes shooting you, so choose carefully.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
You don't know what the police know.
In other words, the police might have perfectly justifiable reasons to take your phone--and you don't know those reasons.
ALWAYS take that into account when making your decisions.
Silent Circle Mobile or some similar service. Not sure if the Blackphone handset can thwart GPS tracking but this way hopefully all they can glean is your approximate location via cell tower records from the carrier. Of course, I'd still explicitly withhold consent of the search.
In fairness, if you write stuff in steno shorthand, nobody'll be able to read that either....
Liberty - Security - Laziness - Pick any two.
Tell them repeatedly and ad nauseum that you do not consent to the search; object loudly and often, and make sure your attorney hears about it. Anything they uncover will be inadmissible. If you're extremely lucky, your cell phone will contain the only incriminating evidence, and you can walk away on a technicality.
The illegal phone search could support the original "hidden" search, while another team/person on the LEO side is building a "plausible, legal reasoning" that you or someone connected to you is guilty of some crime.
http://en.wikipedia.org/wiki/P...
Make sure everyone's vote counts: Verified Voting
Except that parallel construction to circumvent the 4th would likely result in dismissal with prejudice, and possibly prosecution of the offending party, were it discovered. Ethics portion of basic criminal law course.
How do you prove it's actually parallelly constructed? Sounds like a hell of a thing to prove, especially considering how un-auditable the police consider themselves to be (see earlier story about Mass. SWAT teams claiming they're privatized so have no oversight).
Make sure everyone's vote counts: Verified Voting
If they ask "May I look at your phone?" you say "No, not without a warrant", if they do it anyway, you might want to say "I didn't give you permission to look at my phone, please put it down" Keep trying until they tell you to shut up.
Don't try to quote law to cops and judges. It will only get you in trouble. Don't tell them they need a warrant, because that's interpreting the law and you might be wrong. Tell them you don't consent to a search, because that's the truth and you want to be clear you aren't consenting, not trying to tell them how the law works.
"Can I look at your phone." ..."
"Sure here. Nice isn't got two cameras..."
"Can you unlock the phone for me
"Oh. You mean look at the contents of my phone. Well you see my wife is a legal student, and if I let you see them without a warrant, then I will never get laid again."
There are 7.5 million law enforcement officers for 300 million Americans? That's like what, one for every forty Americans, including children? Surely that number is a bit off, isn't it?
Ezekiel 23:20
But how can you be sure that you have nothing to hide?
How inappropriate to call this planet Earth, when clearly it is Ocean.
It's not even that *most* cops are dishonest (there are some), it's that even good cops make honest mistakes. What you don't want to do is give them anything to make such a mistake with. An, IMHO, it's human nature - especially for those in authority - to not want to admit to mistakes. So if they screw up and arrest you for something that turns out to be nothing, they often *WILL* want to find *something* in order to make you look like the bad guy, and not them.
Seriously, cops make me nervous. I was once accused of shoplifting from a store in the next city. Apparently somebody called in my plates. The cop said they had me on video. I volunteered to come in so they could see if the dude on video was really me, or I can identify if it was somebody I was with (hey, if buddy is visibly shoplifting on my ride, sorry but I'm not covering for him). The answer: "oh, sorry but I don't have the video on me, it's with officer so-and-so. However this is a serious crime. If you come in and 'fess up you'll likely just get a fine, service, and no record".
I tried to talk to the cop in the next city who supposedly had the "evidence" but he was never available, however I kept getting told to return the item and confess.
Eventually, I talked to the store owner. Nothing was stolen on the day in question. In fact, the store didn't even carry the product that was supposedly taken. The owner managed both stores in the city and nothing was take from (or existed at) either. However, the cops were damn convinced I'd stolen something. So I explained to the owner/manager what was up, and asked if *she* could contact officer X with case file Y. She apologized for the inconvenience and said she'd get it dealt with, even gave me some store credit for the hassle.
After that, the cops just stopped calling me. No apology. No "hey we f**ked up and didn't vet that there was an actual theft and not a false-accusation/prank-call". Weeks of stress and hell, and then nothing because *THEY* screwed up and didn't do their job, then couldn't drop it fast enough when it became apparent.
So yeah. Honestly, for the stress I probably should have just said "am I being charged with a crime. Should I discuss this with a lawyer." and let them either charge me or drop it. Certainly it was a *huge* amount of stress in my life, and I'm sure it was on my "police record" (which records police interactions) though obviously since it was fake there was no "criminal record"
Cops screw up. The problem is they generally won't admit to it. The less opportunity to screw up you give them, the better.
So yeah, the papers-please guard? Sorry, but if he's insistent on getting your phone without cause, then HE IS THE CRIMINAL. This papers please crap is along the same vein. It's not being a dick to exercise your rights, and it may save you a lot of hassle.
that's why the greatest generation was the greatest generation... oh wait.
Indeed - and you'd be in handcuffs anyway.
If you want to insure that they don't go pawing through your phone, put a passcode on the stupid thing. Mind you this isn't to keep them out, but to get the case thrown out later on if they decide to go into the thing minus a warrant (of course they can get one later and search it then, but in the meanwhile...)
Quo usque tandem abutere, Nimbus, patientia nostra?
What perfectly justifiable reason could they have? Examples please?
Now if you're using "could" as in "I could sprout wings and fly tomorrow right after I win the lottery" then sure, they "could" have justifiable reasons. It's just very, very, very unlikely.
Never let a lack of data get in the way of a good rant.
I don't think you caught the " then pretend they didn't search your phone" part.
Imagine this, A recent ex of yours was going around showing everyone your pet rock that you keep by your bed in order to ward off tiger attacks claiming she took it to piss you off. Your buddy sees this and texts you about it. You reply, that bitch is going to get it when I find her. Well, your ex is a part time crack whore looking for a good time, gets connected to the wrong guy and gets herself killed. You were at work when it happened but clocked out an hour or so after. The coronor's report list the time of death in a window that technically would have allowed you to do the killing. You get pulled over with another friend who has some dope on them. They arrest the entire lot of you, realize they want to question you about your ex's murder, go through your phone and see that you wrote a text indicating violence. They don't say anything, but go after your other friend and ask him about it. They ask if they can look at his phone, he says I have nothing to hide and boom, they see the text you sent.
Now you are sitting in county lockup, charged with murdering your ex, and all the cops will admit to is they found the text in a legal search of another phone. What they can't legally do and what they will do might not be the same thing. Ever heard of an anonymous tip? All the need to do is have another officer call in on a line that is monitored and anonymous is in the house. It doesn't matter what rights you have or what the cops are allowed to do. The enforcers of the law will seldom enforce themselves. They are above the law for all intents and purposes.
Torn between calling bullshit and requesting a citation. No wait...bullshit.
[UID-HeinzIntel]
Yes, sue them under Section 1983, Title 42 of the United States Code. Even individual officers can be sued for violating your rights. LEOs should think long and hard about violating a person's rights, because you can sue them for their money, belongings, house, retirement, whatever it takes to pay you when you win. And you may just win if you have the right lawyer.
In part Section 1983, Title 42 states -- any person who "under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law."
To quote Ron White, "I had the right to remain silent. What I lacked was the ability to remain silent."
I just realized that the cops (or anyone) could point my phone at me to open it. Time to turn off that facial password.
On one hand you sardonically belittle those who value their freedoms, on the other, your signature cites Eisenhower, one of the the last Presidents to truly care about the welfare and freedom of the people over Political and Corporate interests. Make up your fucking mind
My phone is encrypted. They could never access anything in it unless I were to hand over the rather lengthy password.
The best thing to do in any situation where cops are trying to search and/or arrest you is to say "I don't consent to any searches and I want to speak with my attorney", then shut the fuck up and stay quiet. Cops love it when people talk to them, just remember you are under absolutely no obligations to say a single work to a cop. I ignore them all of the time and they fear people who know when to keep quiet and when to walk away (if you are not under arrest and you ask if you are free to leave and get any response other than "no", then you can legally walk away and there is nothing they can do about it).
Not all cops are dishonest. But enough of them are that you should more or less not trust that any given one is.
At least in the areas I've know lots of cops, they are all dishonest. The dirty ones are just evil, but the "good" ones know who the dirty ones are, and don't turn them in, making them dishonest by omission.
Learn to love Alaska
Only if you catch them, and manage to prove it beyond all doubt to a judge that has a long professional relationship with the cops you are accusing of crimes.
Ethics is a how-to guide for cheating. Cheating is ok if you don't get caught.
Learn to love Alaska
There are? I don't watch that show often, but I usually see them use fruit of the poison tree to get the guy they all know is guilty. I don't see them get slapped down for it that much. After all, the guy is a scumbag, so they were justified.
Can you be Even More Awesome?!
And why would they need a warrant for it?
-- 29A the number of the Beast
I suspect that Eisenhower was smart enough to know the difference between mindless, chest-thumping patriotism and the real thing.
SJW's don't eliminate discrimination. They just expropriate it for themselves.
Probably knew the difference between courage and cowardice, too.
An enigma, wrapped in a riddle, shrouded in bacon and cheese